11 2014 PARLIAMENT OF TASMANIA SOLICITORGENERAL REPORT

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11 2014 PARLIAMENT OF TASMANIA SOLICITORGENERAL REPORT
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11 2014 PARLIAMENT OF TASMANIA SOLICITORGENERAL REPORT


2014


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parliament of tasmania

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SOLICITOR-GENERAL




REPORT FOR 2013-14






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Presented to both Houses of Parliament pursuant to

section 11 of the Solicitor-General Act 1983

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In accordance with section 11 of the Solicitor-General Act 1983 (“the Act”), I submit to the Attorney-General my report with respect to the performance and exercise by my immediate predecessor Mr G.L. Sealy SC, and the Acting Solicitor-General Mr F.C. Neasey, of the functions and powers of the Office of Solicitor-General for the relevant period - being the twelve month period which commenced on 1 July 2013 and ended on 30 June 2014.



1. THE OFFICE OF SOLICITOR-GENERAL


The Past


The Office of Solicitor-General has existed in Tasmania since 1825. At that time and consistent with the practice in the United Kingdom, the Office of Solicitor-General was a political office1 – both the Attorney-General and the Solicitor-General being members of most of the early Cabinets following the introduction of responsible government in Tasmania.2 However, in 1863, following the report of a Royal Commission to inquire into the accounts, and “…the nature and amount of the business transacted in the several Departments of Our Government whose offices or places of business shall be and lie to the southward of the Town of Campbell Town…”, the decision was made that the Office of Solicitor-General should henceforth be a non-political and non-ministerial office. Perhaps unsurprisingly, the decision appears to have been based more upon financial rather than prudential considerations.


From 1863 the Solicitor-General’s Office was the core of the legal administration of the government until, in 1934, the Attorney-General’s Department was created and assumed responsibility for the administration of legislation. Thereafter the Solicitor-General’s Department functioned as the Crown law office advising and assisting the Executive Council, Ministers and Agencies in legal matters affecting them. This position remained virtually unchanged until the enactment of the Act which, for the first time, established the Office of Solicitor-General as an independent office under statute.


I have attached as Schedule 1 an historical list of the Solicitors-General for Van Diemen’s Land and Tasmania.



The Present


The functions of the Office of Solicitor-General are set out in section 7 of the Act in the following terms;


“7. Functions of Solicitor-General

A person holding the Office of Solicitor-General has and shall exercise the following functions:

(a) to act as counsel for the Crown in right of Tasmania or for any other person for whom the Attorney-General directs or requests him to act;

(b) to perform such other duties ordinarily performed by counsel as the Attorney-General directs or requests him to perform; and

(c) to perform such duties (if any) as are imposed on him by or under any other Act.”

In addition, section 8 of the Act provides for the delegation to the Solicitor-General by instrument in writing by the Attorney-General of;


“…responsibility for the performance or exercise of such of the functions and powers (other than th[e] power of delegation) which may be performed or exercised by the Attorney-General under the laws of Tasmania as may be specified in the instrument of delegation…”


No delegation pursuant to section 8 of the Act was in force at any time during the relevant period.


It remains the case that currently the vast majority of the work of the Solicitor-General and of those counsel who are engaged to assist the Solicitor-General, involves the provision of legal advice to the Executive government, its Agencies (e.g., Departments, Commissions, Boards etc.) and other emanations of the Crown.


Nearly all litigious matters in which the State is a party, or is otherwise concerned, are dealt with by the Office of the Director of Public Prosecutions (Civil Division), the notable exception being matters which involve the Commonwealth Constitution or its interpretation. Those matters are invariably dealt with exclusively by the Solicitor-General’s Office.


The remainder of the government’s civil legal work, which involves the documentation of the multitude of transactions in which the State is constantly involved such as contracts, licences, permits etc., is undertaken by the Office of the Crown Solicitor.



The Future


In his report for 2012-13 Mr Sealy SC referred to the “accident of history” that the responsibility for the conduct of the State’s civil litigation should rest with the Office of the Director of Public Prosecutions. He pointed out that the DPP’s principal statutory function is the institution and conduct of criminal proceedings on behalf of the State.


He expressed the view that the compartmentalisation of the Crown’s civil legal work among three separate offices, each having its own distinct identity, has at least three identifiable negative consequences, namely:




Mr Sealy considered that the staff of the three offices of Solicitor-General, Crown Solicitor and DPP (Civil) ought to be conceived of as one single legal practice responsible for undertaking all of the State’s civil legal work with individual practitioners, while concentrating on particular areas of practice, being available to undertake a range of work as either solicitor or counsel or both. On this model, the Solicitor–General and other legal practitioners would act (or continue to act) as counsel on instructions from practitioners within that single office and the Solicitor-General would retain ultimate responsibility for the conduct of “Constitutional litigation” and for the provision of Advisings which, when required, authoritatively state the Crown’s position in respect of contentious legal questions.


Mr Sealy’s reasons are more fully set out in his 2012-13 report.


Given the short time since my appointment, I have formed no view about these issues. However, I intend to explore them further with the Office of the DPP and the Crown Solicitor at an appropriate time.



2. ADMINISTRATION


Mr Sealy SC resigned as Solicitor-General for Tasmania with effect from 16th May, 2014. Appointed on 3rd March, 2008, Mr Sealy served as Solicitor-General with great distinction, providing high level advice in accordance with the Act to Ministers, Heads of Agencies and instrumentalities of the Crown and represented the State in the High Court of Australia on many occasions. He is highly regarded in this office and by the legal profession in general. I take this opportunity to publicly acknowledge his significant contribution to the Office of Solicitor-General and, on behalf of this office, wish him well in whatever endeavour he pursues.


During the relevant period and until his resignation Mr Sealy SC was ably assisted in the performance of his functions by the Assistant Solicitor-General, Mr Frank Neasey and by Ms Sarah Kay, Ms Adrienne Morton and Ms Jenny Rudolf, all of Crown counsel. Ms Morton was seconded to the Office of the Director of Public Prosecutions (Civil) between 28th April, 2014 and (at least) the end of the relevant period, in order to broaden her experience as a practitioner.


Between 19th May, 2014 and the commencement of my appointment on 1st September, 2014, Mr Neasey was appointed to act in the Office of Solicitor-General, pursuant to section 4(4) of the Act. I echo the Attorney-General’s public acknowledgement of and thanks to Mr Neasey for his performance as Acting Solicitor-General.


I acknowledge with thanks the administrative assistance provided to Mr Sealy SC and to Mr Neasey and the other professional staff in the office by Executive Assistant, Ms Melissa Reed and from time to time by administrative officers from the Business Support unit of the Office of the Director of Public Prosecutions, most notably, Ms Tanya Krause. Support was also provided by the Manager of Crown Law, Ms Kerry Worsley and other members of the staff of Crown Law.


From 1 July 2012, the Office of the Crown Solicitor has been fully funded from the Consolidated Fund and accordingly no longer directly3 charges most Crown Agencies and entities for the use

of its services. As has been reported in previous years, this change was made in the hope of removing what appeared to be a significant disincentive to Agencies obtaining legal advice and also of reducing the need to maintain a demarcation between the kinds of work that have traditionally been seen as being the province of the Office of the Solicitor-General on the one hand and the province of the Office of the Crown Solicitor on the other.


In his 2012-13 report Mr Sealy SC reported that the preliminary indications were that the changes may not have had the hoped-for effects. However, as Schedule 2 to this report shows, the trend in legal advice provided by this office is no longer reducing, but has shown a moderate increase during the relevant period.


This office is concerned with the provision of accurate and consistent legal advice to government. It is extremely important that work of an essentially legal character undertaken in Agencies by persons who are neither suitably qualified nor competent to do it should be referred to, or at least reviewed by a central repository for legal advice. Important documents such as contracts, which may involve substantial sums, complex licences and permits and instruments delegating the exercise of statutory powers and functions, should not contain errors and deficiencies. It can be expected that errors and deficiencies resulting from less than optimal skills will not become apparent until long after the instruments have been in use and often only because a dispute or other problem has arisen in relation to them. The result may have serious effects on government action, sometimes rendering it invalid. The minimisation of risks of this nature is of vital concern this office.



Implied Waiver of Privilege


I understand that the disclosure outside the Crown by State servants of copies of legal advice or of even the substance of legal advice continues to present challenges. Such disclosures may give rise to disputes about whether, in a particular case, the disclosure constitutes an implied waiver by the Crown of what is now referred to by the Evidence Act 2001 as the Crown’s “client legal privilege” (or “legal professional privilege”). The law relating to this very important topic is unfortunately complex and seemingly very difficult to convey to non-lawyers in a way that seems to be readily understandable. For at least that reason, all State servants in possession of legal advice should adopt a conservative approach to disclosure. If there is any doubt about the correct approach the relevant Agency should refer the issue of disclosure to this office. The staff of this office frequently provide advice and addresses in various forums and a detailed summary of the applicable principles appears as part of the Attorney-General’s Guidelines for Seeking Advice from the Office of the Solicitor-General which may be viewed on the internet by clicking on the link at the following address:


http://www.crownlaw.tas.gov.au/solicitorgeneral



3. PROFESSIONAL


Advisings


A summary of the formal Advisings prepared by this office during the relevant period and categorised by reference to the Agencies and other bodies which requested those advices is annexed as Schedule 2 to this report. For ease of comparison the same details for the immediately preceding 12 month period are also included.


Section 78B Notices


There has also been a decline in the number of notifications given to the Attorney-General pursuant to section 78B of the Judiciary Act 1903 (Cth) of matters involving the Commonwealth Constitution or its interpretation during the relevant period. I would repeat Mr Sealy SC’s observation in his annual report for 2012/2013 that these numbers have historically been quite volatile and in recent years have been significantly affected by the volume of proceedings commenced in the High Court and Federal Court involving the Migration Act 1958 (Cth).



Interventions and other Appearances


Williams v Commonwealth of Australia

During the relevant period the Attorney-General exercised the right under s 78A of the Judiciary Act 1903 to intervene in one matter in the High Court of Australia, namely Williams v Commonwealth of Australia and Others4. Mr Sealy SC appeared for the Attorney General along with Ms Sarah Kay as junior counsel and Ms Jenny Rudolf as instructing solicitor (also of my office). The following account of the case has been copied from a report prepared by Ms Sarah Kay.


In response to the decision of the High Court in Williams (No.1)5 in which it was held that an agreement to pay money for the provision for chaplaincy services in schools and the payments made under the Agreement were not supported by the executive power of the Commonwealth (under section 61 of the Constitution), the Federal Parliament enacted the following legislation intended to provide the necessary legislative authority to support the school chaplaincy program and an extensive list of other agreements, payments and arrangements:





That legislation (“the impugned provisions”) became the subject of further challenge by Mr Williams in proceedings against the Commonwealth, the relevant Minister and Scripture Union of Queensland. The matter was heard in May 2014 with all States intervening in support of the Plaintiff. The High Court handed down its decision on 19 June 2014.


The Court held that, in their operation with respect to the SUQ Funding Agreement6 and with respect to payments made under that Funding Agreement, none of the impugned provisions were found to be a valid law.


However, the Court declined to consider the broader validity of section 32B and the other impugned provisions in this case. The Court found that it was enough to consider whether, in their operation with respect to the agreement about and payments for the provision of chaplaincy services, section 32B and the other impugned provisions were supported by a head of legislative power.

In finding that the relevant agreement and payments were not so supported, the Court held that providing money to pay persons to provide chaplaincy services at a school is not to provide benefits which are directed to the consequences of being a student and that, therefore, it is not a provision of benefits to students within the head of power contained in section 51(xxiiiA) of the Constitution. Nor did the Court consider that the payments were supported by the corporations power in section 51(xx) as the law is not one authorising or regulating the activities, functions, relationships or business of constitutional corporations or the conduct of those through whom such corporations act. No other source of legislative power was asserted.


The chaplaincy program aside, the validity of each other item listed in the Regulations (and section 32B in its operation with respect to matters referred to in such items) will depend upon whether it is properly supported by a relevant head of legislative power. Relevantly, the Court stated that “Parliament’s legislative power to grant the authority to make a commitment to pay public money is founded in every head of legislative power which supports the making of the payments with which section 32 deals”. The majority went on to say section 32B should only be read as providing power to the Commonwealth to make, vary or administer arrangements or grants only where it is within the constitutional power of the Parliament.


The Court declined to consider the question as to whether section 32B presented some wider questions of construction and validity (which seemed to be a reference to the impermissible delegation of legislative powers issue agitated by the Plaintiff and supported by a number of intervenors) on the basis that it was not a matter which was reached in this case. It was enough to consider whether the operation of section 32B and the other impugned provisions with respect to the chaplaincy scheme were supported by a legislative head of power.


Similarly, with regard to the Commonwealth’s argument that the relevant Appropriation Acts provided the necessary statutory authority for the making of the funding agreement (by providing that the amounts appropriated may be applied to the outcome identified as the (National School Chaplaincy and Student Welfare Program), the Court determined that it was not necessary to examine or decide the validity of that argument in this case but that the issue should await a case in which it is necessary to deal with that argument.


In addition, the Commonwealth’s application to reopen Williams (No.1) was refused. In particular, the Court rejected the notion that the Executive has a power to contract and spend under section 61 of the Constitution on all matters reasonably capable of being seen (by the Parliament) as national benefit or concern. It also rejected the notion that the executive power of the Commonwealth is the same as British executive power, stating that “questions about the ambit of the Executive’s power to spend must be decided in light of all of the relevant provisions of the Constitution, not just those which derive from British constitutional practice”.7


In the result, the only immediate ramification for Tasmania is that the provision of Commonwealth funding with respect to school chaplains is invalid. Of less immediate concern is the possibility that if any other funding provided to the State is not supported by the Constitution or a head of legislative power contained therein, it may be found to be unlawful.



Other matters

During the relevant period, the Attorney-General did not exercise the right to intervene under section 78A of the Judiciary Act 1903 (Cth) in respect of any other matter.


However, in the matter of Tarkine National Coalition Incorporated v Minister for the Environment, Venture Minerals Ltd and the State of Tasmania8, Mr Sealy SC appeared for the State, it having been joined as a party to the proceedings pursuant to section 12(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In that matter the Tarkine National Coalition unsuccessfully challenged the approval given by the Commonwealth Minister to Venture Minerals Ltd’s under the Environment Protection and Biodiversity Conservation Act 1999 to develop a mine.9


In addition, whilst it did not proceed to a hearing10, Mr Sealy SC represented the Electoral Commissioner in the Supreme Court of Tasmania in the matter of Zucco v the Tasmanian Electoral Commission and McDonald, a matter involving an appeal by Mr Zucco under section 49 of the Electoral Act 2004 against the decision of the Commissioner to accept an application to register the Palmer United Party under section 48.


The Attorney-General did not seek to intervene in any matter pursuant to section 16 of the Crown Proceedings Act 1993 during the relevant period.



Hague Convention


This office continues to act on behalf of the State Central Authority in Tasmania (being the Secretary, Department of Health and Human Services) under the Hague Convention on the Civil Aspects of International Child Abduction. However, during the relevant period, no requests to act were received.



Special Committee of Solicitors-General


The Special Committee of Solicitors-General (SCSG) which is comprised of the Solicitors-General of the Commonwealth and of every State and Territory (and by invitation, the Solicitor-General of New Zealand) met on two occasions during the relevant period; in Queenstown (NZ) in August, 2013 and in Perth in November, 2013.


The SCSG is a subcommittee of the Standing Committee on Law and Justice (or “SCLJ”, formerly the Standing Committee of Attorneys-General) and is periodically requested by SCLJ to provide joint advice to it in relation to various matters usually involving more or less contentious Constitutional issues.

The SCSG also routinely reviews and discusses the implications of any recent decisions involving the Commonwealth Constitution or its interpretation together with all pending and reserved cases in Australia in which a constitutional issue has arisen or is thought to be likely to arise.


The meetings of the SCSG also provide a valuable opportunity for the exchange of information and views regarding proposals for law reform and legislative amendment which may have come from other jurisdictions.



Director of Public Prosecutions Act 1973


On 24 March 2013, the Director of Public Prosecutions, Tim Ellis SC was injured in a motor vehicle collision. As a consequence, Mr Ellis has been absent from office from that date to the present.


Subsections (3) and (4) of section 12 of the Director of Public Prosecutions Act 1973 previously provided as follows;


“(3) Subject to subsection (4), in the event of a vacancy occurring in the office of Director or of the illness or absence from office of the Director, his functions shall be performed by the Solicitor-General.

(4) Notwithstanding subsection (3), if, by reason of the office of Solicitor-General being vacant or of the illness or absence from office or from the State of the Solicitor-General, it is not practicable for the functions of the Director to be performed by the Solicitor-General, the Governor may appoint a person who is eligible for appointment as Director to act as Director and may at any time revoke the appointment.”


On 6th November, 2013 these provisions were omitted from the Act by the Director of Public Prosecutions Amendment Act 2013. On the same date Mr Daryl Coates SC was given a direction by the Attorney-General under section 21A of the Acts Interpretation Act 1931 to exercise the powers and perform the functions of the Director of Public Prosecutions and that direction remains in place.


Accordingly between the beginning of the relevant period and 6th November, 2013, in addition to discharging the functions and duties of Solicitor-General, Mr Sealy SC was also responsible for the performance of the functions of the Director of Public Prosecutions. In practice, the vast majority of those functions were ably performed by counsel and staff employed in the Office of the Director of Public Prosecutions thus requiring him to perform only the relatively few functions which must, by law, be personally performed by the Director of Public Prosecutions.11



Other Activities


During the relevant period Mr Sealy SC and the other counsel attached to this office continued to deliver addresses, seminars and workshops to a variety of audiences in a number of different Agencies and in the general community on a wide range of topics.

Acknowledgment


I am indebted to Mr Neasey for the preparation of the bulk of this report.







Michael O’Farrell SC

Solicitor-General of Tasmania

Schedule 1


SOLICITORS-GENERAL OF

VAN DIEMEN’S LAND and TASMANIA


9 May1825

5 May 1832

Alfred Stephen

1832

1833

Hugh Cokeley Ross (acting)

Jan 1833

Sep 1837

Edward McDowell

23 Mar 1838

1841

Herbert C Jones

15 Jan 1841

Dec 1843

Thomas William Horne

Jan 1844

1848

Valentine Fleming KC

1848

Dec 1853

Alban Charles Stonor

1854

1854

Francis Villeneuve Smith

1854

1855

Edward McDowell (acting)

19 Dec 1855

Feb 1857

John Warrington Rogers

25 Apr 1857

1 Nov 1860

Thomas James Knight

1 Nov 1860

Feb 1861

William Lambert Dobson

1 Jan 1864

1867

John Compton Gregson

Dec 1867

14 Mar 1887

Robert Patten Adams

Jun 1887

Apr 1901

Hon. Alfred Dobson KC

Apr 1902

1 Sep 1913

Edward David Dobbie KC

1914

1930

Lloyd Eld Chambers KC

Sep 1930

Aug 1938

Philip Lewis Griffiths KC

1939

17 Oct 1944

Rudyard Noel Kipling Beedham KC

18 Oct 1944

13 Mar 1946

Marcus George Gibson KC (acting)

14 Mar 1946

1 May 1951

Marcus George Gibson KC

14 Jun 1951

21 Mar 1952

Malcolm Peter Crisp KC

26 May 1952

1 Sep 1956

Stanley Charles Burbury QC

27 Sep 1956

27 Feb 1968

David Montagu Chambers QC

6 May 1968

1 Mar 1984

Roger Christie Jennings QC

2 Mar 1984

10 Apr 1986

Christopher Reginald Wright QC

11 Apr 1986

3 Aug 2007

William Christopher Robin Bale QC

18 Sep 2007

18 Jan 2008

Francis Counsel Neasey (acting)

3 Mar 2008

16 May 2014

Geoffrey Leigh Sealy SC

19 May 2014

31 Aug 2014

Francis Counsel Neasey (acting)

1 Sep 2014


Michael Ernest O’Farrell SC

Schedule 2


SCHEDULE OF ADVISINGS

2012-2013

2013-2014

Department of Economic Development, Tourism and the Arts

8

10

Department of Education

23

46

Department of Health and Human Services

49

44

Department of Infrastructure, Energy and Resources

42

52

Department of Justice

127

151

Department of Police and Emergency Management

4

4

Department of Premier and Cabinet

53

72

Department of Primary Industries, Parks, Water and the Environment

88

76

Department of Treasury and Finance

23

14

Tasmanian Audit Office

5

2

Retirement Benefits Fund Board

3

3

The Public Trustee

0

0

Other bodies and offices

29

18

TOTAL ADVISINGS

454

492




Section 78B Notices

153

146


1 i.e., an office filled by an elected member of the Parliament

2 In the United Kingdom the Attorney-General has rarely, and the Solicitor-General has never, been a member of the Cabinet; the prevailing view being that membership of the Cabinet is inconsistent with the duty to act as truly independent legal advisors to the Cabinet and government departments [See generally, The Law Officers of the Crown, Edwards, Sweet & Maxwell, 1964, Chapter 9.

3 Although, as I understand things, Agency funding is now reduced to take account of the value of legal services expected to be consumed by each Agency in the forthcoming financial year.

4 [2014] HCA 23

5 Williams v The Commonwealth (2012) 248 CLR 156.

6 Between the Commonwealth and Scripture Union Queensland, as varied.

7 [2014] HCA 23 at [80]

8 [2014] FCA 468

9 The decision is subject to appeal by the Tarkine National Coalition Inc, to be heard by the Full Federal Court on 13th November, 2014.

10 Mr Zucco withdrew his appeal prior the hearing of it.


11 See, for example, Director of Public Prosecutions Act 1973, s 15(1) and Criminal Code, s 125A(7)


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